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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, Chester, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, January 27, 2014

Sex video in the workplace kills off discrimination claim

The Court of Appeals does not like this employment discrimination case at all, stating that the plaintiff's argument is "absurd."

The case is Humphreys v. Cablevision Systems Corp., a summary order decided on January 17. In order to bring a discrimination case, you have to first make out a prima facie case, a low-threshold requirement that allows the plaintiff to make an initial showing of discrimination. If the plaintiff does so, then the employer has to advance a neutral reason for the plaintiff's termination. Plaintiff does not meet this low threshold. This is how the Court of Appeals (Jacobs, Lohier and Droney) summarizes the case:

Humphreys, a senior manager at a Cablevision facility, does not deny that he flagrantly violated Cablevision’s Harassment Prevention Policy by showing two of his colleagues a vulgar and offensive internet video. Humphreys’ only response is that one of the two viewers, Dianne Yepes, a human resources employee who later reported his conduct, was equally or more culpable because she did not immediately prevent Humphreys from showing the video, yet was spared termination.

You can win a gender discrimination case is someone else was not disciplined for the same misconduct. But Yepes is not comparable to Humphrey. The Court of Appeals therefore says that plaintiff's argument "borders on the absurd." It adds, "To use Yepes as a comparator for a showing of disparate treatment, Humphreys must show that Yepes was 'similarly situated,' i.e., 'engaged in comparable conduct.'” Yates is not a good comparator. The Court says:

Humphreys introduced the video into the workplace and exhibited it to his co-workers. The Policy specifically prohibits “the distribution of sexually explicit or otherwise abusive or offensive . . . communications.” It was Humphreys who distributed the video; at most, Yepes failed to interrupt the video and protect Humphreys from his own poor judgment. The audience members are not similarly situated comparators.

Sex in the workplace is frowned upon, to say the least. George Costanza learned that the hard way. Humphreys brought the explicit video to work and showed it to others. Pointing the finger at those in the room who did not stop him from showing the video will not create an issue of fact for trial.